Rahat Yaar Khan And Another vs State Of Uttarakhand And Others
2023 Latest Caselaw 1854 UK

                                Reserved
  HIGH COURT OF UTTARAKHAND AT NAINITAL

           Writ Petition (M/S) No. 1004 of 2008

Rahat Yaar Khan and another
                                                       ........Petitioners
                                 Versus

State of Uttarakhand and others
                                                      ........Respondents

Present :
       Mr. Vijay Bhatt, Advocate for the petitioners.
       Mr. J.P. Joshi, Additional Advocate General for the State.
       Mr. V.K. Kaparuwan, Central Government Standing Counsel for the Union
      of India.



                               Judgment

Hon'ble Ravindra Maithani, J.

The challenge in this petition is made to the order

dated 04.12.2007 passed by the respondent no.

4/Custodian, Enemy Property for India ("CEPI"). By this

order, the CEPI required the District Magistrate, Udham

Singh Nagar under Section 8 of the Enemy Property Act,

1968 ("the EP Act") to take into possession, manage,

preserve a part of property mentioned therein and

consequential orders.

FACTS

The Petitioners

2. The petitioners' case is as follows:-

(i) The petitioners are Bhumidhar Tenure

Holders of about 10 acre land situated in

Village Darau, Tehsil Kichha, District

Udham Singh Nagar being Plot Nos. 1052

Min, 1152, 1157, 1111, 1112, 1113, 1114,

1119, 1120 Ka, 1121, 1122, 1123, 1124,

1153, 1154, 1155, 1156, 1166 and 1241

("the disputed property"). The father of the

petitioners late Sri Abdul Wahid Khan along

with his two brothers was in cultivatory

possession of the disputed property. A case

No. 50/90-91, under Section 9-A (2) of the

Uttarakhand Consolidation of Holdings Act,

1953 ("the CH Act") ("the case") was initiated

and vide order dated 26.06.1991, the

Consolidation Officer, Khatima, Camp

Kichha rejected the objection of the State

that the disputed property is an evacuee

property and further directions were issued

that the disputed property may be entered

in the name of the father of the petitioners

along with his brothers.

(ii) The order dated 26.06.2021 passed in the

case was challenged in appeal under

Section 11 of the CH Act before the

Settlement Officer, who allowed the appeal

on 20.05.1993 and set aside the order dated

26.06.1991 passed in the case.

(iii) The father of the petitioners moved a

revision under Section 48 of the CH Act,

which was registered as Revision No. 52/59

of 1992-93, Abdul Wahid Khan vs. Habib

Yar Khan and others ("the revision"). It was

allowed on 15.12.1993 and the order of the

Settlement Officer dated 26.06.1991 passed

in the case was upheld.

(iv) A writ petition i.e. Civil Writ Petition No.

2326 of 1994, Sahadat Yar Khan v. Deputy

Director of Consolidation, Nainital and

others, was preferred by Sahadat Yaar

Khan, son of Sri Abdul Sayeed Khan against

the father of the petitioners, in the High

Court of Judicature at Allahabad, in which

on 17.01.1994, status quo order was

passed. This writ petition, after transfer to

this Court was registered as Writ Petition

(M/S) No. 815 of 2001 ("the first petition").

The first petition was pending, when the

present writ petition was filed.

(v) The father of the petitioners died on

16.01.1994. Thereafter, the names of the

petitioners being sons, legal heirs and

successors of late Sri Abdul Wahid Khan

were mutated in the revenue records. The

petitioners are in continuous cultivation

and in possession of the disputed property.

(vi) On 04.12.2007, by the impugned order, the

respondent no. 4 directed the District

Magistrate, Udham Singh Nagar to take

control of the dispute property.

3. It is the case of the petitioners that they were

legal heirs of the deceased Abdul Wahid Khan. The State

had objected in a proceeding under the CH Act that the

disputed property is an evacuee property; initially on

26.06.1991, the claim of the father of the petitioners was

upheld and the State's objection with regard to evacuee

property has been rejected and that order has attained

finality; it was not disturbed when the petition was filed;

therefore, the order taking into custody of the disputed

property is bad in the eyes of law, which deserves to be set

aside.

4. Respondent nos. 1, 2, 3 & 5 filed their counter

affidavit. It has been the consistent claim of respondent

nos. 1, 2, 3 & 5 that the disputed property was recorded in

the name of Abdul Sayeed Khan, Abdul Wahid Khan and

Abdul Sadiq Khan, out of which 1/3rd share of it was owned

by Abdul Sayeed Khan; during the period of division of

India and Pakistan, Adbul Sayeed Khan left India and

settled in Pakistan; his 1/3rd share in the disputed property

was declared as evacuee property and, accordingly, it was

vested in the custodian under the provisions of the

Administration of Evacuee Property Act, 1950 ("Evacuee

Property Act").

5. In paragraph 4 of its counter affidavit, the

respondent no. 3, the then District Magistrate, Udham

Singh Nagar stated these facts. Paragraph 4 of the counter

affidavit dated 03.11.2008 reads as under:-

"4. That the contents of para no. 2 of this writ petition as stated are not at all admitted hence denied, where as in fact the total area of 9-956

situate in village Darau was recorded in the names of Abdul Sayeed Khan, Abdul Wahid Khan sons of Sri Abdul Azeez Khan and Sadiq Khan S/o Sri Mohammad Alikhan and out of which 1/3 share of the said land was owned by Sri Abdul Sayeed Khan and during the period of division of India and

Pakistan Sri Abdul Sayeed Khan has after leaving India settled in Pakistan as such his 1/3 share of the above said land was declared as evacuee property and accordingly the said land vested in custodian under the provisions of Administration of Evacuee Property Act, 1950 as it is provided under section 5 of Enemy Property Act that the supervision of the evacuee property always remains in the control of its custodian hence the contention of the petitioners saying that they are Bhumidhars of the land bearing plot nos. 1052Min, 1152, 1157, 1111, 1112, 1113, 1114, 1119, 1120 ka, 1121, 1122, 1123, 1124, 1153, 1154, 115, 1156, 1166, 1241 situated in village Darau, Tehsil Kichha District - Udham Singh Nagar is not at all tenable, as in fact the said property was owned by Sri Abdul Sayeed Khan, however, the said property could not have been recorded in the names of petitioners due to being declared as evacuee property, therefore the order passed by the Consolidation Officer in this regard is illegal order and also barred by section 48(A) of U.P. Consolidation of Holdings Act. That as per section 26(A) of U.P. Zamindari Abolition & Land Reforms Act, 1950 as also prevalent in Uttarakhand the literal meaning of custodian of evacuee property will be same as provided under Evacuee Property Act, 1950."

(emphasis supplied)

6. It has also been the contention of respondent

nos. 1, 2, 3 & 5 that the consolidation authority has no

right to pass orders in respect of evacuee property, as it is

barred under Section 48-A of the CH Act. This has further

been reiterated by respondent nos. 1, 2, 3 & 5 in their

supplementary counter affidavit dated 08.12.2020, which is

filed on behalf of these respondents by Tehsildar, Kichha,

District Udham Singh Nagar. In paragraphs 5 and 7 of this

supplementary counter affidavit, these contentions have

been narrated. They are as follows:-

"5. That the contents of para nos. 3 of the supplementary affidavit are not admitted as wrongly submitted by the petitioner hence denied. It is further submitted that before the partition of India, the disputed property continued to be in the ownership of Abdul Sayeed and after its partition the disputed property became evacuee property as Abdul Sayeed had gone to Pakistan, as such the Consolidation Officer had no right to hear on the disputed property nor he was having any right to give judgment thereon, therefore the order dated 26.06.1991 is not a correct order and thus not admitted and by passing such order no statutory right could accrue to the petitioner.

7. That the contention of the petitioner as raised by him in para 5 of supplementary affidavit saying that the disputed property has not been declared as evacuee property is wrongly submitted by the petitioner hence denied as in fact the Ministry of Home of Government of India as well the custody officer of Evacuee property of India have accordingly declared the disputed property to be evacuee property, however, rest of the contents of this para need no comments as these are matters of record. It is further necessary to be added here that after being declared the disputed property as evacuee property by the Ministry of Government of India as well by the custody officer

of Evacuee Property of India, the said property has been entered in the extract of Khatauni bearing its Fasli Year 1426 to 1431 Fasli is being filed herewith and is marked as Annexure No. 1 to this affidavit."

(emphasis supplied)

7. In one of its additional supplementary counter

affidavits dated 21.09.2021, the respondent nos. 1, 2, 3 & 5

have filed certain documents with regard to the disputed

property.

8. The respondent no. 4, the CEPI, in his counter

affidavit dated 15.11.2021 has refuted the claim of the

petitioners on the following terms:-

(i) In terms of the Government of India's

Notification bearing Nos. 12/2/65-E.pty,

dated 10.09.1965 and 11/09/1965, all

properties in India, moveable and

immovable, belonging to or held by or

managed on behalf of all Pakastani

nationals automatically came to vest in the

Custodian of Enemy Property for India, in

exercise of the powers conferred by sub-rule

(1) of 133-V of the Defence of India Rules,

1962 ("DI Rules, 1962").

(ii) The concepts of evacuee property and

enemy property are different concepts. The

evacuee property is regulated by the

Evacuee Property Act, 1950 and all the

evacuee properties are managed by and

under the custody of the State Government,

whereas enemy property is regulated by the

EP Act as amended by the Enemy Property

(Amendment and Validation) Act, 2017, and

all the enemy properties are managed by

and under the custody of the Central

Government.

(iii) The CEPI is statutorily entrusted with the

management, control and preservation of

the enemy properties vested in him.

(iv) The impugned order dated 04.02.2007 has

been passed under Section 8 of the EP Act.

The property once vested will always remain

enemy property and cannot be divested

except by the order of the Central

Government on the representation of the

aggrieved party under Section 18 of the EP

Act.

9. In para 9 of its counter affidavit, the respondent

no. 4 has stated that after Abdul Sayeed Khan migrated to

Pakistan, "the rights in favour of the enemy property are

created instantly a person migrated to Pakistan". Para 9

of the counter affidavit filed on behalf of the respondent no.

4 reads as hereunder:-

"9. That the land was jointly owned and was in possession of 3 brothers, namely, Shri Abdul Wahid Khan, Shri Abdul Sayeed Khan and Shri Abdul Hasib Khan. Mere mutation of record in favour of the Petitioners does not entitle them to be the owners of the property. At the outset, it is equally important to mention that the property in question is vested with answering Respondent on the day Shri Abdul Sayeed migrated to Pakistan. The rights in favour of enemy property are created instantly a person migrated to Pakistan."

(emphasis supplied)

10. Pleadings have extensively been exchanged

between the parties.

ARGUMENTS

THE PETITIONERS

11. Learned counsel for the petitioners would submit

that by order dated 26.06.1991, passed in the case, the

father of the petitioners had already been held as the

original owner of the disputed property. The claim of the

State that the property is an evacuee property, has not been

accepted in the case. Learned counsel for the petitioners

also raised the following points in his submission:-

(i) The order dated 26.06.1991 has been

challenged at multiple levels and it has been

upheld in revision on 15.12.1993. This

order dated 15.12.1993 passed in the

revision was challenged in the first petition,

which was dismissed and in that

eventuality, it is argued that the order dated

26.06.1991 passed by the consolidation

authority in the case has attained finality,

by which the name of the petitioners' father

was recorded in the revenue record and the

claim of the State was denied treating the

disputed property as evacuee property.

(ii) An order under Section 8 of the EP Act may

be passed only with regard to the properties,

which are vested in the custodian. It is

argued that there is no separate order by

which the disputed property has ever been

vested in the custodian.

(iii) A property may first vest under the DI

Rules, 1962 in the CEPI, but such an order

has not been passed in the instant case; it

has not been shown by the respondents.

12. On behalf the State of Uttarakhand, Mr. J.P.

Joshi, learned Additional Advocate General would submit

that by Notification dated 10.09.1965, all movable and

immovable properties belonging to Pakistan nationals would

vest in the CEPI. It is argued that this notification has been

general, by virtue of which the disputed property in the

instant case has also vested in the CEPI. Learned Additional

Advocate General would also raise the following

submissions :-

(i) Abdul Sayeed Khan had gone to Pakistan

some time in the year 1961 or 1962.

(ii) The disputed property is enemy property

under Rule 133 (1) (b) of the DI Rules, 1962.

(iii) The impugned order dated 04.12.2007 is

valid.

(iv) A writ petition is not maintainable to

challenge the impugned order, because

against any order passed under the EP Act,

a representation to the Central Government

may be made under Section 18 of it and

thereafter under Section 18(C) of the EP Act,

an appeal to the High Court may be

maintained. It is argued that the provisions

of the EP Act have overriding effect in view

of Section 22 of the EP Act; in view of it, a

writ petition may not be entertained.

13. Learned counsel for the respondent no. 4 adopts

the arguments as advanced on behalf of the State.

DISCUSSION AND CONCLUSION

14. In order to meet certain contingencies of war, the

EP Act was enacted in the year 1968. The statement of

objects and reasons of the EP Act makes it abundantly clear

as to what was the need to enact such law. It reads as

hereunder:-

"An Act to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and the Defence of India Rules, 1971, and for matters connected therewith."

15. The EP Act has, in fact, gone wide range of

amendments in the year 2017. The EP Act as stood prior to

2017 had come up for interpretation before the Hon'ble

Supreme Court in the case of Union of India and another v.

Raja Mohammed Amir Mohammad, AIR 2005 SC 4383. The

provisions of the EP Act as then stood were interpreted in

the case of Raja Mohammed (supra), particularly, the

Hon'ble Supreme Court took note of the provisions of

Section 2(b) & (c), 6, 8, 13 and 18 of the EP Act and

observed that "A reading of Section 18 makes it evident

that enemy property is not permanently vested in the

Custodian and divesting the Custodian of such property

is contemplated." In this case, the Hon'ble Supreme Court

observed as hereunder:-

"19. A conjoint reading of Sections 6, 8 and 18 of the Act indicates that the enemy subject due to the vesting of his property in the Custodian is not divested of his right, title and interest in the property. The vesting in the Custodian is limited to the extent of possession, management and control over the property temporarily. This position was not disputed before us by the learned counsel appearing for the appellant. The object of the Enemy Property Act is to prevent a subject of an enemy State from carrying on business and trading in the property situated in India. It is, therefore, contemplated that temporary vesting of the property takes place in the Custodian so that the property till such time as it is enemy property cannot be used for such purpose." .

16. In fact, in the case of Raja Mohammed (supra),

the enemy property was inherited by a citizen of India. A

question arose as to whether after inheritance can the said

property be still termed as enemy property? The answer was

in negative. In para 20, the Hon'ble Supreme Court posed a

question and in para 21 replied it as follows:-

"21. It is not in dispute that the respondent was born in India and is an Indian citizen. His late father migrated to Pakistan in the year 1957 and became a citizen of Pakistan. After the breaking of the hostilities between India and Pakistan in the year 1965 the property of his father located in India got vested in the Custodian. After the coming into force of the Enemy Property Act in the year 1968 the properties of the late Raja continued to be vested with the Custodian till he died on 14-10-1973 in London. After the death of his father the respondent who is a citizen of India inherited the property being the sole heir and successor of his father. Can he be termed as enemy or enemy subject within the meaning of Section 2(b) or can the property of an Indian citizen be termed as enemy property within the meaning of Section 2(c)? The answer is an emphatic 'No'. The definition of enemy provided under Section 2(b) excludes citizens of India as an enemy, or enemy subject or enemy firm. Under the circumstances, the respondent who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject under Section 2(b). Similarly, under Section 2(c) the property belonging to an Indian could not be termed as an enemy property."

(emphasis supplied)

17. After the judgment in the case of Raja

Mohammed (supra), as stated, in the year 2017 wide range

of amendments were made in the EP Act. The statement of

object and reasons speaks of such changes. It reads as

follows:-

"Statement of Objects and Reasons of Amendment Act 3 of 2017. - The Enemy Property Act, 1968 was enacted on the 20th August, 1968 to, inter alia, provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and for matters connected therewith.

2. Of late, there have been various judgments by various courts that have adversely affected the powers of the Custodian and the Government of India as provided under the Enemy Property Act, 1968. In view of such interpretation by various courts, the Custodian is finding it difficult to sustain his actions under the Enemy Property Act, 1968.

3. in the above circumstances, it has become necessary to amend the Enemy Property Act, 1968, inter alia, to clarify the legislative intention with retrospective effect providing -

(a) that the definition of "enemy" and "enemy subject" shall include the legal heir and successor of an enemy, whether a citizen of India or a citizen of a country which is not an enemy and also include the succeeding firm of an enemy firm in the definition of "enemy firm" irrespective of the nationality of its members or partners;

(b) that the enemy property shall continue to vest in the Custodian even if the enemy of enemy subject or enemy firm ceases to be enemy due to death, extinction, winding up of business or change of nationality or that the legal heir or successor is a

citizen of India or a citizen of a country which is not an enemy;

(c) that the enemy property shall continue to vest in the Custodian with all rights, title or interest in the property and the Custodian shall preserve the same till it is disposed of by the Custodian, with the prior approval of the Central Government, in accordance with the provisions of this Act;

(d) that the Custodian shall, after making such inquiry as he deems necessary, declare that the property of the enemy or the enemy subject or the enemy firm vest in him under the aforesaid Act and issue a certificate to that effect which would be evidence of the facts stated therein;

(e) that the law of succession or any custom or usage governing succession shall not apply in relation to enemy property;

(f) that no enemy or enemy subject or enemy firm shall have any right and shall never be deemed to have any right to transfer any property vested in the Custodian and any transfer of such property shall be void;

(g) that the Custodian, with prior approval of the Central Government, may dispose of the enemy properties vested in him in accordance with the provisions of the said Act and for this purpose the Central Government may issue such directions to the Custodian which shall be binding upon him;

(h) that the Central Government may transfer the property vested in the Custodian which was not an enemy property to the person who has been aggrieved by the vesting order issued by the Custodian.

4. In order to have speedy and effective eviction of unauthorized occupants from the enemy property under the Custodian, it is proposed to amend the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 so as to declare the Custodian and Assistant Custodian of Enemy Property appointed under the Enemy Property Act, 1968 as "Estate Officer" in respect of the enemy properties.

5. As Parliament was not in session and an urgent legislation was required to be made, the President promulgated the Enemy Property (Amendment and Validation) Ordinance, 2016 on the 7th January, 2016.

6. The Bill seeks to replace the aforesaid Ordinance."

18. There is a purpose to reproduce the statement of

objects and reasons. The definition of "an enemy" or "an

enemy subject" as contained in the initial EP Act under

Section 2(b) of the EP Act has gone tremendous change

after 2017. Now, after amendment, it reads as hereunder1 :-

"2. Definitions. - In this Act, unless the context otherwise requires, -

(b) "enemy" or "enemy subject" or "enemy firm" means a person or country who or which was an enemy, an enemy subject including his legal heir and successor whether or not a citizen of India or the citizen of a country which is not an enemy or

__________________________________________________

1. Prior to amendment Section 2(b) was as follows:

"2.(b) "enemy" or "enemy subject" or "enemy firm" means a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be, under the Defence of India Act, 1962 and the Defence of India Rules, 1962 or the Defence of India Act, 1971 and the defence of India Rules, 1971 but does not include a citizen of India;"

the enemy, enemy subject or his legal heir and successor who has changed his nationality or an enemy firm, including its succeeding firm whether or not partners or members of such succeeding firm are citizens of India or the citizen of a country which is not an enemy or such firm which has changed its nationality, as the case may be, under the Defence of India Act, 1962, and the Defence of India Rules, 1962 or the Defence of India Act, 1971 (42 of 1971) and the Defence of India Rules, 1971, but does not include a citizen of India other than those citizens of India, being the legal heir and successor of the "enemy" or "enemy subject" or "enemy firm";

Explanation I. - For the purposes of this clause, the expression "does not include a citizen of India" shall exclude and shall always be deemed to have been excluded those citizens of India, who are or have been the legal heir and successor of an "enemy" or an "enemy subject" or an "enemy firm"

which or who has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy.

Explanation 2. - For the purposes of this clause, it is hereby clarified that nothing contained in this Act shall affect any right of the legal heir and successor referred to in this clause (not being inconsistent to the provisions of this Act) which have been conferred upon him any other law for the time being in force."

19. Followed by it, Section 6 of the EP Act was also

amended. It now reads as hereunder2 :-

"6. Prohibition to transfer any property vested in Custodian by an enemy, enemy subject or enemy firm. - (1) No enemy or enemy subject or enemy firm shall have any right and shall never be deemed to have any right to transfer any property vested in the Custodian under this Act, whether before or after the commencement of this Act and any transfer of such property shall be void and shall always be deemed to have been void.

(2) Where any property vested in the custodian under this Act had been transferred, before the commencement of the Enemy Property (Amendment and Validation) Act, 2017, by an enemy or enemy subject or enemy firm and such transfer has been declared, by an order, made by the Central Government to be void, and the property had been vested or deemed to have been vested in the Custodian by virtue of the said order made under Section 6, as it stood before its substitution by Section 6 of the Enemy Property (Amendment and Validation) Act, 2017 such

__________________________________________________

2. Prior to amendment, Section 6 of the EP Act read as follows:

"6. Transfer of property vested in Custodian by enemy or enemy subject or enemy firm.--Where any property vested in the Custodian under this Act has been transferred, whether before or after the commencement of this Act, by an enemy or an enemy subject or an enemy firm and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then, the Central Government may, after giving a reasonable opportunity to the transferee to be heard in the matter, by order, declare such transfer to be void and on the making of such order, the property shall continue to vest or be deemed to vest in the Custodian."

property shall, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, continue to vest or to be deemed to have been vested in the Custodian and no person (including an enemy or enemy subject or enemy firm) shall have any right or deemed to have any right (including all rights, titles and interests or any benefit arising out of such property) over he said property vested or deemed to have been vested in the Custodian."

20. Section 18 of the EP Act is another provision,

which has also undergone changes in the year 2017. It

reads as hereunder3 :-

"18. Transfer of property vested as enemy property in certain cases.--The Central Government may, on receipt of a representation from a person, aggrieved by an order vesting a property as enemy property in the Custodian within a period of thirty days from the date of receipt of such order or from the date of its publication in the Official Gazette, whichever is earlier and after giving a reasonable opportunity of being heard, if it is of the opinion that any enemy property vested in the

__________________________________________________

3. Prior to amendment, Section 18 of the EP Act read as follows:-

"18. Divesting of enemy property vested in the Custodian.--The Central Government may, by general or special order, direct that any enemy property vested in the Custodian under this Act and remaining with him shall be divested from him and be returned, in such manner as may be prescribed, to the owner thereof or to such other person as may be specified in the direction and thereupon such property shall cease to vest in the Custodian and shall revest in such owner or other person."

Custodian under this Act and remaining with him was not an enemy property, it may by general or special order, direct the Custodian that such property vested as enemy property in the Custodian may be transferred to the person from whom such property was acquired and vested in the Custodian."

21. A bare perusal of above amendment makes it

abundantly clear that post judgment in the case of Raja

Mohammed (supra), the definition of "enemy" or "enemy

subject" under Section 2 (b) of the EP Act has gone vast

changes. Now, it includes the "legal heir and successor" of

enemy, whether a citizen of India or not. Earlier, it was

not the position.

22. Prior to amendment in the year 2017, the

definition of "enemy" had excluded citizens of India, as was

discussed in the case of Raja Mohammed (supra). Not only

this, prior to amendment in the year 2017, as per Section 6

of the EP Act, any property vested in the Custodian under

the provisions of the EP Act, if transferred before or after

commencement of the EP Act by enemy or enemy subject,

etc., then the Central Government may after giving a

reasonable opportunity declare such transfer to be void.

But, now after amendment, such transfer is declared void

and shall always be deemed to have been void. Now the

interference of the Central Government has been removed

for that purpose.

23. The disputed property was claimed by the father

of the petitioners in a proceeding under Section 9-A (2) of

the CH Act and by the judgment and order dated

26.06.1991 passed in the case, it was directed that the

disputed property be entered in the name of the petitioners'

father.

24. In the case, the State had taken objection an

objection that the disputed property is an evacuee property.

It had been the case of the father of the petitioners, in the

case, that Abdul Wahid Khan had transferred the disputed

property in favour of the father of the petitioners. It was

held in the case that :-

(i) The disputed property had been in the

possession of the father of the petitioners

prior to abolition of zamindari.

(ii) Abdul Sayed Khan, the brother of the father

of the petitioners had transferred his rights

in the disputed property in favour of the

father of the petitioners on 27.12.1950 by a

deed. (The deed is SA 1 of the supplementary

affidavit dated 01.06.2018 of the petitioner

no. 1 Rahat Yar Khan); and

(iii) The father of the petitioner had been paying

land revenue of the disputed property, which

he produced and filed in the court.

25. As stated, finally the judgment dated 26.06.1991

was put to challenge in WPMS No. 815 of 2001, Sahadat

Yar Khan v. Deputy Director of Consolidation and others.

On 18.05.2022, none appeared in WPMS No. 815 of 2001.

The Court on that date, observed as hereunder:

"In that eventuality, since none has put in appearance on behalf of the petitioner, to recall the order dismissing the writ petition in WPMS No 815 of 2001, in default, would be deemed to have been affirmed, and in that eventuality, the rights which has flown to the predecessor of the present petitioner as a consequence of the culmination of the proceeding under Section 9 (A)(2) of the Consolidation Act, which was the subject matter of the writ petition being WPMS No. 815 of 2001, would be deemed to be have finalized qua the petitioner.

In that eventuality, in WPMS No. 815 of 2001, no independent order is required to be passed as the petitioner or his successor have not appeared to get the order dated 21.07.2018 recalled."

26. The judgment dated 26.06.2021, passed in the

case, has been upheld uptil this Court. It had attained

finality. The question is what would be the impact of the

amendment, which was made in the EP Act post judgment

dated 26.06.1991 passed in the case? If the law is changed,

can it affect the judgment of a case, which had finally

decided the rights inter se the parties?

27. The order dated 18.05.2022 passed in WPMS No.

815 of 2001, as quoted hereinbefore, categorically affirms

that the order dated 26.06.2021 has been upheld and

attained finality uptil this Court. Now the question is what

would be the effect of changes made in the EP Act in the

year 2017 or what is the impact of the communication

dated 04.12.2007 and 06.06.2008.

28. A substantive law may not be retrospective

unless specifically so provided. In the case of Beghar

Foundation through its Secretary and another v. Justice

K.S. Puttaswamy (Retired) and others, (2021) 3 SCC 1, the

Hon'ble Supreme Court, inter alia, observed that "We

hasten to add that change in the law or subsequent

decision/judgment of a coordinate or larger Bench by

itself cannot be regarded as a ground for review. The

review petitions are accordingly dismissed."

29. In the case of Topcem India and others v. Union

of India and others, 2021 SCC OnLine Gau 1047, the

Hon'ble Gauhati High Court, on the subject, took note of

the judgment of the Hon'ble Supreme Court and in paras

55, 56, 57 observed as hereunder:-

"Binding effect of a judgment and principle of res judicata

55. It is also not disputed that in respect of the some of the petitioners since the refunds were not granted, writ petitions were filed before this court and this court by orders on different dates held that the petitioners were entitled to refunds claimed in terms of the judgment of the Apex Court in "SRD Nutrients (P.) Ltd." (supra). There is no appeal or review filed in respect of these orders also which have been since attained finality.

Accordingly, the refunds which were granted by the Department were pursuant to judicial proceedings before the Apex Court and/or the Gauhati High Court, the refunds sanctioned/released were on the basis of orders passed by the Apex Court and/or the Gauhati High Court. Consequently, once a judgment or judicial order is passed by a Court of law against the Department, the remedy available to the Department is by way of an appeal to a higher Court or review. Since, the review filed before the Supreme Court were dismissed and since no further appeal and/or review was passed against the different orders passed by the Gauhati High Court, the lis between the parties, namely, the petitioners and the Department of Central Excise has attained finality in respect of the issues which are now sought to be reopened by way of the demand-cum-show cause notice impugned in the present proceedings. Such a procedure sought to

be invoked by the Department is completely alien in law as established by the constitution as well as the law laid down by the Apex Court in a catena of judgments.

56. In this context, it will be relevant to refer to meaning ascribed to a "judgment" by the Apex Court "2. Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function is its distinctive characteristics. Its recording gives an official certification to a pre-existing relation or establishes a new one on pre-existing grounds. It is always a declaration that a liability, recognized as within the jural sphere, does or does not exist."

57. From the judgment of the Apex Court discussed above, it is evident that a "Judgment" decides the rights between the parties to a lis. Once a Court renders a judgment on the issues viz-a-viz the rights of the parties, such a judgment can only be re-visited by the established judicial norms, namely, a review or an appeal or revision in some cases. Unless, the findings of a Court arrived at by way of legal proceeding is sought to be reopened in the manner discussed above, the operative portions in the judgment viz-a-viz parties will attain finality. A subsequent change in law arrived at by a Court

by way of the separate judicial proceeding, wherein the earlier law laid down has been held to be not a good law or that the earlier law will cease to have precedential value, will not ipso facto reverse the position of the party viz-a-viz their rights which were declared and concluded by way of an earlier judicial proceedings".

30. In the case of Hitendra Vishnu Thakur and

others v. State of Maharashtra and others, (1994) 4 SCC

602, the Hon'ble Supreme Court summed up the ambit and

scope of an Amending Act and its retrospective operation as

follows:-

"26.............

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

31. In the case of S.T. Sadiq v. State of Kerala and

others, (2015) 4 SCC 400, the Hon'ble Supreme Court

discussed the effect of change of law in a judgment, which

has been pronounced prior to such change in law. The

Hon'ble Supreme Court observed that "It is settled law by

a catena of decisions of this Court that the legislature

cannot directly annul a judgment of a court." In para 13

and 14, the Hon'ble Supreme Court observed as

hereunder:-

"13. It is settled law by a catena of decisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in "making" law (see Article 245 of the Constitution) and not in "declaring" what the law shall be (see Article 141 of the Constitution). If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters which are inter partes. Interestingly, in England, the last such bill of attainder passing a legislative judgment [R. v. Fenwick, (1696) How 13 St Tr 538] against a man called Fenwick was passed as far back as in 1696. A century later, the US Constitution expressly outlawed bills of attainder (see Article 1 Section 9).

14. It is for this reason that our Constitution permits a legislature to make laws retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no longer hold good. However, if such is not the case then legislation which trenches upon the judicial power must necessarily be declared to be unconstitutional."

32. The Hon'ble Supreme Court in the case of S.T.

Sadiq (supra), in para 21, last sentence, observed that "It is

clear, therefore, that Section 6 directly seeks to upset a

final judgment inter partes and is bad on this count and

is thus declared unconstitutional".

33. The judgment dated 26.06.1991 passed in the

case, as discussed hereinabove, has attained finality uptil

this Court, which in so many words have been so declared

by this Court in WPMS No. 815 of 2001, Sahadat Yar Khan

v. Deputy Director of Consolidation and others, as quoted

hereinabove. Therefore, any change in law subsequent to

the judgment dated 26.06.1991 will not affect the binding

effect of the judgment dated 26.06.1991, which had settled

the rights of the fathers of the petitioners and thereafter

that of the petitioners. In fact, as stated, the State of U.P.

had filed objections in the case claiming the property as

evacuee property, but the court had held in the case on

26.06.1991 that the father of the petitioners is the owners

of the property and directions for mutation in his name was

passed. Accordingly, the disputed property has been

entered in the name of the petitioner's father and thereafter

the petitioners in the revenue records. They became the

owners. Subsequent impugned orders dated 04.12.2007,

30.05.2008 and 06.06.2008 cannot upset the judgment

dated 06.06.2008 passed in the case.

34. This is another aspect of the matter. The

question is as to whether the disputed property in the case

is enemy property and further as to whether the property

has ever been vested in CEPI under Rule 133-V of the DI

Rules, 1962.

35. Rule 133-V of the DI Rules, 1962 reads as

follows:-

"133-V. Collection of debts of enemy firm and custody of property. - (1) With a view to preventing the payment of moneys to an enemy firm and preserving enemy property, the Central Government may appoint a Custodian of Enemy Property for India and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed and may by order:

(a) require the payment to the prescribed custodian of money which would but for these rules be payable to or for the benefit of an enemy firm; or which would but for the provisions of Rule 133-Q and Rule 133-T be payable to any other person and upon such payment the said money shall be deemed to be property vested in the prescribed custodian'

(b) vest, or provide for and regulate the vesting, in the prescribed custodian such enemy property as may be prescribed;

(c) vest in the prescribed custodian the right to transfer such other enemy property as may be prescribed, being enemy property which has not been, and is not required by the order to be, vested in the custodian:

(d) confer and impose on the custodian and on any other person such rights, powers, duties and liabilities as may be prescribed as respects-

              (i)      property which has been or
                       is required to be, vested in
                       a custodian by or under
                       the order,


              (ii)     property of which the right
                       of transfer has been, or is
                       required to be, so vested,


              (iii)    any other enemy property
                       which has not been, and is
                       not    required   to   be,   so
                       vested,





                                       (iv)     money which has been, or
                                                is by the order required to
                                                be, paid to a custodian;

........................................................................... ........................................................................... .........................................................................."

36. Along with the counter affidavit, the respondent

no. 4 has filed Government of India notification dated

10.09.1965. It reads as follows:-

"No. 12/2/65-E.pty- In exercise of the powers conferred by sub rule (1) of 133-V of the Defence of India Rules, 1962, the Central Government hereby orders that all immovable property in India belonging to or held by or managed on behalf of all Pakistan nationals, shall vest in the Custodian of Enemy Property for India with immediate effet.

2. Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistan nationals as are employed in the different Missions of the Government of Pakistan in India."

37. By virtue of the aforesaid notification dated

10.09.1965, it has been argued that the disputed property

has been vested in CEPI.

38. There are two core questions. On behalf of the

respondent nos. 1, 2, 3 & 5, along with supplementary

court affidavit dated 21.09.2021, a document has been

filed, which is report of the Revenue Officer to reveal that

Abdul Sayeed Khan had gone to Pakistan some time in the

year 1962. The respondent no. 4 in its counter affidavit, in

para 10, has stated that Abdul Sayeed Khan had gone to

Pakistan in the year 1960.

39. Mere going to Pakistan does not make a person

Pakistan national. It is not an admitted case that Abdul

Sayeed Khan was a Pakistan national.

40. The notification dated 10.09.1965, as filed by the

respondent no. 4, only directs that the immovable property

of Pakistan nationals shall vest in CEPI. It has not been

even established by the respondents that Abdul Sayeed

Khan was a Pakistan national. This Court cannot presume

it. This is not an admitted fact.

41. Therefore, merely on the consideration of

notification dated 10.09.1965, it cannot be said that under

sub-rule (1) of Rule 133-V of the DI Rules, 1962, the

disputed property had ever vested in CEPI. In other words,

it has not been established by the respondents that the

disputed property had ever vested in CEPI under Rule 133-

V of the DI Rules, 1962.

42. The impugned order has been passed under

Section 8 of the EP Act. CEPI may pass an order under

Section 8 of the EP Act only with regard to the property,

which has vested in it. In the instant case, the respondents,

as stated, have failed to show that the disputed property

has ever been vested in CEPI. Therefore, in the absence of

vesting any right under Section 133-V, the CEPI could not

have passed the impugned order.

43. Consequently, the writ petition is allowed.

Impugned order dated 04.12.2007 passed by respondent

no. 4/Custodian, Enemy Property for India as well as the

consequential orders dated 30.05.2008 and 06.06.2008 is

set aside.

(Ravindra Maithani, J.)

18.07.2023 Avneet/